Does immunity mean impunity? The legal and political battle of household workers against trafficking and exploitation by their foreign diplomat employers.

• Author: Kappus, Jennifer Hoover

"To some, human trafficking may seem like a problem limited to other parts of the world. In fact, it occurs in every country, including the United States, and we have a responsibility to fight it just as others do." (1)

Secretary of State, Hillary Rodham Clinton

INTRODUCTION

Before Badar Al-Awadi, the Third Secretary at the Kuwait Mission, departed for the United States, he promised Vishranthamma Swarna a $2,000 monthly salary, Sundays off, and one month of paid vacation per year to visit her family in India, in exchange for working as a live-in household servant in his New York City residence. (2) However, upon her arrival, Al-Awadi confiscated Ms. Swarna's visa and passport. In clear violation of the employment contract, he forced her to work seventeen hours a day, seven days a week, paid her $200 to $300 per month, and refused to let her take off Sundays to go to church or the month to visit her family in India. (3) The Third Secretary also forbade Ms. Swarna from leaving the apartment unsupervised, intercepted her mail and telephone calls from her family, and prohibited her from mailing letters home or making telephone calls. (4) Al-Awadi abused her almost daily, threatening to cut out her tongue, throwing a packed suitcase at her, calling her "dog" and "donkey," and dragging and locking her outside the apartment while taunting her with warnings of further injury and/or arrest. The Third Secretary raped her on numerous occasions and threatened to kill her if she ever told anyone. (5) As a result of this horrible treatment, Swarna suffered dramatic weight loss, hair loss, nightmares, fatigue, and suicidal thoughts. (6)

One day, Swarna asked to return to India instead of going with the family on their trip to Kuwait. In response, Al-Awadi threatened to hit her with an iron rod. When she screamed and warned that she would call the police, Al-Awadi angrily replied that his brother and father were "high ranking police officials in Kuwait" and that "once [they returned to] Kuwait they would 'punish' her." (7) The following day, while both Al-Awadi and his wife were out, she fled the apartment and signaled to the first taxi she saw to ask for help. (8)

Swarna's story is only a glimpse into the countless incidents of trafficking and abuse of household workers by their foreign-diplomat employers who are officially located in the United States. In July 2008, the Government Accountability Office (GAO) submitted a report to the Senate's Subcommittee on Human Rights and the Law describing the alleged abuse of domestic workers by foreign diplomats and urging the government to strengthen its efforts to address this problem. (9) The GAO determined that between 2000 and 2008, a minimum of forty-two domestic workers brought to the U.S. on either an A-3 (10) or G-5 (11) visa and employed by foreign diplomats alleged that their diplomat employers abused them. (12) The GAO cautioned that the actual number of incidents was likely greater, (13) though the director of the GAO's section of international affairs and trade stated, "[n]obody expected a number this big." (14)

Both the U.S. and the United Nations (U.N.) recognize that the involuntary servitude of domestic workers falls within the definition of trafficking in persons. The Victims of Trafficking and Violence Protection Act of 2000 (15) defines "severe forms of trafficking in persons" as "the recruitment, harboring, transportation, provision, or obtaining a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery." (16) Similarly, the U.N. Protocol to Prevent, Suppress, and Punish Trafficking in Persons (17) states that trafficking includes "forced labour or services, slavery or practices similar to slavery [... and] servitude" and can be instigated by means "of coercion ... of deception, of the abuse of power or of [... placing the person in] a position of vulnerability ... for the purpose of exploitation." (18)

Currently, foreign diplomats are able to traffic domestic servants inside their diplomatic residences in the United States with little to no legal repercussions because of the almost absolute immunity granted to diplomats under the Vienna Convention on Diplomatic Relations (VCDR). (19) Without any consequences, there is no incentive for diplomats to stop engaging in this form of modern slavery. Because diplomatic immunity is adamantly prized and guarded by all parties to the VCDR, States typically resist any attempts to whittle away these protections for their own diplomats. While some victims are able to obtain a measure of legal redress by waiting to bring suit against their diplomat employers until after the diplomat's term in the U.S. ends (or by wrangling an occasional settlement), these remedies are often limited and difficult to obtain. Therefore, a more comprehensive approach involving various institutional solutions, such as improving internal procedures at embassies, consulates, and international organizations, in conjunction with using tools already present in the VCDR, such as bringing suit under residual immunity and expanding the use of persona non grata, may be the most productive and successful way to alleviate the problem.

This Note breaks down the overarching problem of human trafficking inside diplomatic residences into three main topics and offers solutions specific to the issues within these areas. Part I provides an overview of the origins and nature of diplomatic immunity. Part II analyzes the issues domestic-worker litigants face in trying to seek judicial relief for the abuse and discusses the limited nature of judicial remedies. Part III explores immigration and institutional policies and initiatives, along with various additional mechanisms, to prevent domestic workers from entering into abusive situations and to provide assistance resources for them if they are in an abusive environment. Lastly, Part IV discusses the diplomatic process and the measures the U.S. Department of State (State Department) has taken to combat trafficking inside diplomatic residences located on American soil. It also lays out several steps that the State Department may take in the future to combat this problem.

1. DIPLOMATIC IMMUNITY OVERVIEW

   Though the exploitation of domestic workers by foreign diplomats clearly falls within the definition of trafficking in persons accepted by the U.S. and U.N., (20) diplomats have remained largely immune from suits brought by their employees because of the almost absolute nature of diplomatic immunity. Diplomatic immunity from criminal and civil suits has been an established international practice for centuries (21) and was codified as international law in the VCDR, which is almost universally adopted. (22) The purpose of the VCDR "is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States." (23) Under the VCDR, diplomats and their families have immunity from the receiving State's civil and administrative jurisdiction. (24) Congress later enacted the Diplomatic Relations Act of 1978, (25) which provides that "[a]ny action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention on Diplomatic Relations ... shall be dismissed." (26) The Act further provides that a defendant can establish diplomatic immunity by simply filing a motion or suggestion claiming such immunity. (27) Courts rely on the State Department's formal recognition of the defendant as a diplomat and accept the government's confirmation of the emissary's diplomatic status as conclusive. (28)

   U.N. representatives are entitled to the same level of full immunity as diplomats. (29) U.N. representatives' immunity is derived from the Headquarters Agreement, (30) which established the U.N. headquarters in New York City and governs the relationship between the U.N. and the United States. (31) Article V, section 15 provides that U.N. representatives "shall, whether residing inside or outside the headquarters district, be entitled in the territory of the United States to the same privileges and immunities, subject to corresponding conditions and obligations, as it accords to diplomatic envoys accredited to it." (32)

   Representatives of the U.N. and other international organizations, such as the World Bank and the International Monetary Fund (IMF), also are afforded a more limited immunity under the International Organizations Immunity Act (IOIA). (33) The IOIA provides that officers, employees, and representatives of foreign governments to international organizations "shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees," unless the sending State or international organization waives the immunity. (34)

2. LEGAL OBSTACLES AND JUDICIAL REMEDIES

   Over the past decade, domestic-worker litigants have presented a wide gamut of arguments for why the trafficking of domestic workers inside the diplomat's residence falls outside of the activities covered by diplomatic immunity. They have argued that: employing a domestic worker falls within the commercial-activities exception; (35) human trafficking is a jus cogens exception to diplomatic immunity; (36) involuntary servitude is a tort in violation of internationally recognized norms of international law; (37) human trafficking violates the Thirteenth Amendment right to be free from slavery; (38) and defrauding the American government should not be covered by diplomatic immunity. (39) However, because of the strict adherence to full diplomatic immunity for a current diplomat or state representative in international organizations, courts have consistently remained unsympathetic to these arguments and found in favor of the...